VAKHARIA and Ors v BUKOWSKI and Ors

A driver is judged by the standard of a reasonably careful and competent driver in the actual circumstances, not by the standard of an ideal driver or with hindsight. Where a vehicle’s warning light is cleared after restarting and the vehicle appears to function normally, a driver may reasonably conclude that the fault has been resolved. The driver need not anticipate an unforeseeable complete loss of power merely because the vehicle previously suffered reduced power. The claimant bears the burden of proving a positively pleaded fact on which negligence depends. A driver’s decision to leave an emergency refuge area will not fall below the required standard where the available evidence shows that the driver reasonably believed the vehicle could proceed safely, even on a smart motorway without a hard shoulder.

The claims arose from a fatal collision on the M1 involving a Scania heavy goods vehicle and a Kia people carrier. The defendants admitted liability to the injured claimants, but sought a contribution from the Kia’s driver and his insurer under the Civil Liability (Contribution) Act 1978. The Part 20 claim alleged that the driver had negligently left an emergency refuge area after the Kia suffered a loss of power and displayed an engine management warning light.

The central issues were whether the warning light remained illuminated or reappeared before the Kia left the refuge area, whether the driver was negligent in rejoining the motorway, and, if so, whether his negligence caused or contributed to the accident.

1. Burden and standard of proof. The Part 20 claimants bore both the burden of adducing evidence and the probative burden in relation to their positive case that the engine management light remained illuminated. They also bore the burden of proving negligence on the balance of probabilities.
2. Warning light. The Kia had suffered a fault causing reduced power and had displayed the engine management light. The driver restarted the engine while stationary in the emergency refuge area, and that operation cleared the light. The evidence did not establish that it reappeared before the vehicle left the refuge area. Even if it had reappeared during the short manoeuvre, the driver would reasonably have been concentrating on checking traffic and completing the difficult re-entry safely; failure to notice or respond to the light would not have fallen below the required standard.
3. Decision to rejoin. A reasonably careful driver, faced with an apparently normally functioning, properly maintained vehicle and an extinguished warning light, could reasonably conclude that the fault had been resolved. The reasonably apparent risk was a recurrence of reduced power, not a complete loss of all power. The driver could reasonably have anticipated that the vehicle could continue at reduced speed with its hazard lights on until reaching another emergency refuge area, an exit, or a hard shoulder.
4. The absence of a hard shoulder did not alter that conclusion. The relevant guidance did not require a driver to obtain telephone advice before leaving an emergency refuge area, and the later amendments to the Highway Code were not applicable to the accident.
5. The Part 20 claimants’ allegations of negligence therefore failed. Causation and apportionment did not arise. The judge observed that, had negligence been established, the lorry driver’s negligence would have substantially outweighed any error by the Kia’s driver, with a possible contribution of no more than 10–15 per cent.